Sunday, June 30, 2013

Another (Scandal) Bites the Dust

So, it appears that the IRS scandal is a big dud.  Besides applying extra scrutiny to applications for tax exempt status containing the words "Tea Party," "Patriot," and "9-12," it also targeted groups with the words "progressive," "progress," "blue" and "occupy," and names containing reference to open source software.  The reason it targeted groups saying they were dedicated to open source software was that some of these groups are really commercial and improperly seeking tax exempt status.  It is quite probable that more conservative than liberal organizations received extra scrutiny, but this was not because of ideological bias, but simply because more conservative than liberal organizations were applying.

Still, it would be false to say that there is no problem at all.  A commenter to Kevin Drum explains:
I worked in the field for several years, and while it'd be pretty easy to convince me that some of these organizations deserve closer scrutiny, the IRS' "screening" has been wildly disproportionate. Groups that are unquestionably above board have been in limbo for years, unable to start fundraising in earnest, because the IRS refuses to finally approve or reject their application for 501(c)3 status.
He goes on to say that the Tea Party is probably experiencing the same problem -- some of its applications for tax exempt status are legitimate; some are not.  The problem is that office in charge of deciding which organizations are legitimate lacks the resources to address the issue properly, so they cast a very broad net and unduly delay many organizations whose applications are legitimate.  In other words, just because the IRS was not being partisan does not mean that all is well.  It means that the problem is structural -- the IRS is poorly equipped to give proper and timely scrutiny to questionable applications.

I would also add, the problem is also with the laws the IRS is enforcing.  A 501(c)(4) organization is a "social welfare" organization.  Although not allowed to endorse candidates or engage in openly partisan activities, it may engage in "civic," "educational," or "issue" activities that look very much like lobbying or grass roots lobbying.  Some of them are simply PAC's (political action committees) under a very thin veneer of civic action.  Nor is this limited to the right -- is a 501(c)(4) organization, as are many others. Drawing the line between "educational" or "issues" advocacy, which is allowed by the tax code, and partisan or candidate activity which is not, is going to mean making hopelessly fine distinctions that make no sense to anyone.  Any attempt to enforce it will necessarily mean relentless and heavy-handed scrutiny.  The other alternative, of course, is to give up and not attempt to enforce the rule.

It would be nice if the initial impression that the IRS was violating the rights of right wingers led to some sort of impetus for reform.  Maybe there should be more resources devoted to enforcement to allow a less heavy-handed approach.  Or some sort of guidance should be offered.  Or maybe (God forbid!) the law should be changed to eliminate the distinction between partisan and issue-oriented.

Oh, well.  I can dream, can't I?

Sunday, June 16, 2013

Why I Favor Violating the Rights of Right Wingers

Well, what I had hoped for has come to pass.  The Obama Administration has infringed on the liberties of right wingers.  I have reluctantly concluded that there is no other way to get civil liberties onto the radar screen.  All presidents have a tendency to want to expand their own power.  This tendency is trans-partisan and should not be too surprising.  Indeed, it was one of the original assumptions when the Constitution was first drafted, that the executive (as well as the other branches) would seek to aggrandize its power.  It was also assumed that the other branches would be equally protective of their own prerogatives and therefore hold each other in check.  There were two things the Founding Fathers failed to take into account.  One was political parties.  If the same party controlled both the Presidency and Congress, members might be more interested in pursuing partisan advantage than in maintaining institutional prerogatives.  One may say that this is short-sighted, that political power alternates between parties quite regularly, and that Congress should not want the President to have unchecked power once the other party comes to power.  But, alas, people tend to be short-sighted on these things.  The other, more baleful thing they failed to foresee was the national security state, with interests of its own apart from elective government, and with its ability to play on people's fears of foreign threats.

Ever since 9-11 (and possibly even before) the dynamic worked as follows:  Every President, regardless of party, wants to expand the government's eavesdropping powers. If a Republican holds the White House and Republicans control Congress, they will happily give the President unlimited power, confident that he will never abuse it.  If the Democrats control Congress, regardless of the party in the White House, they will not dare check the President's eavesdropping powers for fear of being labeled soft on terrorism.  Ah, but if a Democrat holds the White House and Republicans control Congress, right wingers will fear they might be targets of surveillance and act to block it.  That was what happened after Timothy McVeigh blew up the Oklahoma City Federal Building.  Bill Clinton wanted expanded surveillance powers to watch right wing private armies.  Right wingers freaked out, fearing that more mainstream organizations would be next, and blocked the expansion.

Unfortunately, this dynamic has failed until now.  Two things (I suspect) have kept conservatives from freaking out over the massive powers of surveillance that the government has.  One was that they were started by a Republican and therefore must be all right.  The other is that the assumption thus far has always been that these powers will only be directed at someone else, and so conservatives have nothing to fear.  Now several things have happened to make them less confident.

One is that the IRS has apparently been singling out "Tea Party," Patriot" and other conservative names for extra scrutiny when groups apply for tax exempt status under Regulation 501(c)(4).  As I understand it 501(c)(4) is a loophole in the tax code that allows "civic leagues and other corporations operated exclusively for the promotion of "social welfare", such as civics and civics issues" to receive tax exempt status and does not have to report donors.  While some such organizations are genuinely devoted to "charitable, educational, or recreational purposes," others are simply lobbying organizations by another name.  While organizations that support a particular candidate or party are not tax exempt, "issues" advocacy groups can be.  Some of the largest and most powerful lobbying and think tank organizations in the country are tax exempt under 501(c)(4).  Apparently with the founding of the Tea Party, the IRS experienced a huge flood of applications for such status and started singling ones with Tea Party sorts of names out for special scrutiny to see if they were really political organizations in disguise.  This was despite having approved tax exempt status for many larger and more powerful advocacy organizations, left and right, in the past.  So, was this proper or improper, persecution of conservatives, or an attempt to prevent abuse of the tax code.  I don't think we have the information yet to know. There is no evidence yet that the IRS has done anything illegal, but ample evidence that the law does not give the IRS enough guidance how to handle such requests.

Next, it turned out the Obama Administration obtained the phone records, first of an AP reporter and then of  a Fox reporter, and their contacts.  Both reporters appear to have published leaks that the Administration had legitimate national security reasons to want plugged.  In both cases, the Administration obtained a warrant to search for the reporter's phone records, so no laws were broken.  But to prosecute a reporter for publishing a leak, as well as the leaker who made it, is simply not done.  And, in fact, the Obama Administration did not prosecute the reporter, but did obtain a warrant by indicating (almost certainly falsely) that it might.  In other words, although the Administration did not technically break the law, it stretched it to the extreme fraying point.  Also, given that it treated the AP reporter and the Fox reporter the same way, it seems reasonable to assume that a general war on leaks, not partisan animus, was the motive.

My impression is that right wingers were inclined to applaud when the Obama Administration stretched the law to get telephone records on the AP reporter, but a Fox reporter was a different matter altogether.  Similarly, Democrats are eager to investigate the IRS targeting of the Tea Party, probably at least in hopes of expanding the investigation to earlier possible improper targeting of liberal groups.  My impression, frankly, is that right wingers would be entirely happy to pass a law broadly expanding the government's power to subpoena reporters' telephone records, so long as Fox News, the Washington Times, the National Review, the Weekly Standard, talk radio, and other conservative outlets are exempted.  They might also be quite happy to make a rule that conservative advocacy group could have tax exempt status, but liberal ones could not.  But that isn't going to happen.  Obvious ideological targeting will neither pass constitutional muster nor be acceptable to the broader public.  So if right wingers want to protect themselves from intrusive government, they will have no choice but to protect others as an accidental side effect.

It was against this backdrop that revelations about NSA information collecting on telephone and online information were made.  In other words, the right was primed to be suspicious and fear that after all, they and not just terrorists might be targets.  Kevin Drum, in a column that (alas) I can no longer find, comments that any unchecked surveillance program is dangerous, and that just because there is no evidence yet that the NSA has been data mining Occupy Wall Street does not prevent some future administration from doing so.  But I say, if you want this thing brought under control, forget about Occupy Wall Street.  Point out that it could be used to data mine records of the Tea Party.  Then we will get some action!